360 F.

3d 21

CONSERVATION LAW FOUNDATION and Oceana,

Plaintiffs, Appellants,
v.
Donald L. EVANS, et al., Defendants, Appellees, and
Fisheries Survival Fund, Intervenor, Appellee.
No. 02-2664.

United States Court of Appeals, First Circuit.

Heard October 8, 2003.
Decided February 26, 2004.

Eric A. Bilsky with whom Sylvia F. Liu and Roger M. Fleming were on
brief for appellants.
Anna T. Katselas, Attorney, U.S. Department of Justice, Environment &
Natural Resources Division with whom Thomas L. Sansonetti, Assistant
Attorney General, Environment & Natural Resources Division, Jeffrey
Bossert Clark, Deputy Assistant Attorney General, Environment &
Natural Resources Division, Mauricia Baca, John Almeida, Todd S. Kim,
Attorneys, Environment & Natural Resources Division and Gene S.
Martin, Office of Regional Counsel, National Oceanic and Atmospheric
Administration (Of Counsel), were on brief, for appellees Donald L.
Evans, et al.
David E. Frulla with whom Shaun M. Gehan, Brand & Frulla, P.C., H.
Reed Witherby and Smith & Duggan, LLP, were on brief, for intervenor,
appellee Fisheries Survival Fund.
Before LIPEZ, Circuit Judge, CAMPBELL, Senior Circuit Judge, and
HOWARD, Circuit Judge.
HOWARD, Circuit Judge.

Two conservation groups challenge adverse summary judgment rulings in an

action alleging violations of the Magnuson-Stevens Fishery Conservation and
Management Act (the Magnuson-Stevens Act), 16 U.S.C. 1851, 1853, 1854,

and the Administrative Procedure Act (the "APA"), 5 U.S.C. 553, 706.
Conservation Law Foundation ("CLF") and Oceana (f/k/a American Oceans
Campaign) allege that in implementing Framework Adjustment 14 to the
Atlantic Sea Scallop Fishery Management Plan ("Framework 14"), the National
Marine Fisheries Service ("NMFS") and other federal defendants1 failed to
meet their procedural and substantive obligations under governing law. The
district court found that Framework 14 was lawful. We affirm.
I. Factual and Procedural Background
2

On May 31, 2001, the plaintiffs initiated an action challenging Framework 14,
a rule that adjusted certain restrictions on sea scallop fishing in the Atlantic
coastal waters.2 The plaintiffs challenged Framework 14 on both substantive
and procedural grounds. First, they alleged that NMFS failed to meet its
substantive management obligations under the Magnuson-Stevens Act, 16
U.S.C. 1851(a)(9), 1853(a)(7) & (a)(11), and the APA.3 Second, they
claimed that NMFS's failure to provide a 15-day public comment period
violated the Magnuson-Stevens Act, 16 U.S.C. 1854(b), and the APA, 5
U.S.C. 553, 706(2)(D). The plaintiffs asked the district court to declare
Framework 14 in violation of the governing statutes and to "remand" it with the
requirement that NMFS remedy the alleged deficiencies. They also sought their
fees, costs, and expenses.

In September 2001, the parties submitted to the district court a joint proposal
for briefing and discovery. See Local Rule 16.1. In the proposal, the plaintiffs
requested that the court expedite the case pursuant to 16 U.S.C. 1855(f)(4).4
Over the next few months, the parties filed cross motions for summary
judgment.5 The district court heard argument on the motions in May 2002. By
September 2002, no decision had issued, and the plaintiffs renewed their
request to expedite the case, alerting the court to the fact that Framework 14
would expire by its own terms in March 2003.

On October 31, 2002, the district court denied the plaintiffs' motion for
summary judgment and granted the defendants' motions. See Conservation Law
Found. v. United States Dep't of Commerce, 229 F.Supp.2d 29 (D.Mass.2002).
The court found that the Magnuson-Stevens Act did not mandate public
comment for a rule such as Framework 14 and that the public comment period
required under the APA had been waived for good cause. See id. at 34 n. 10.
The court also concluded that NMFS had considered the substantive issues
raised by the plaintiffs and did not act arbitrarily and capriciously in
implementing Framework 14. See id. at 34. The plaintiffs appealed. On March
1, 2003, while this appeal was pending, Framework 14 was superseded by

Framework 15.6
II. Analysis
A. Mootness
5

We turn first to the question of mootness. See Roe v. Wade, 410 U.S. 113, 125,
93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ("The usual rule in federal cases is that an
actual controversy must exist at stages of appellate or certiorari review, and not
simply at the date the action is initiated."). The defendants contend that the
expiration of Framework 14 rendered this case moot. See Gulf of Maine
Fishermen's Alliance v. Daley, 292 F.3d 84, 88 (1st Cir.2002). As the parties
invoking the mootness doctrine, the defendants bear a "heavy" burden in
attempting to establish its applicability. Mangual v. Rotger-Sabat, 317 F.3d 45,
61 (1st Cir.2003). And should they merely cease voluntarily the conduct
originally challenged, they must demonstrate that it is "absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur." Id.
(citing United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S.
199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

The defendants attempt to carry this burden with respect to both of the
plaintiffs' claims by citing to Gulf of Maine, a case in which we affirmed the
district court's finding of mootness where a challenged framework affecting
groundfish was superseded while cross motions for summary judgment were
pending. See 292 F.3d at 87. In that case, an organization of commercial
fishermen alleged that a framework was both procedurally deficient for lack of
adequate notice and comment and substantively unlawful because of its closure
of inshore fishing areas. See id. The appellant urged us to find that the alleged
harms continued, despite the promulgation of subsequent frameworks, and that
the issues therefore were not moot. See id. at 88. We rejected that argument,
concluding that the promulgation of a new framework in compliance with
procedural guidelines and based on new data rendered the challenges to the
superseded framework moot. See id.

CLF and Oceana respond with arguments similar to those made by the
appellant in Gulf of Maine. As to their substantive challenge to Framework 14,
they contend that the harms caused by NMFS's failure to close the four fishing
areas were perpetuated through Framework 15. This, they say, means that their
substantive claim remains live, and for support they rely heavily on
Northeastern Florida Chapter of the Associated General Contractors of
America v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586
(1993). There, a challenged ordinance that accorded preferential treatment to

minority businesses for city contracts was repealed and replaced with a
modified version weeks after the Supreme Court had granted certiorari. See id.
at 660-61, 113 S.Ct. 2297 (noting three alterations in ordinance, including
adoption of five- to sixteen-percent "participation goals" in place of ten percent
"set-aside" of city contracts earmarked for minority businesses). These
modifications were not enough to render the controversy moot. The Supreme
Court concluded that "[t]here is no mere risk that [the city] will repeat its
allegedly wrongful conduct; it has already done so." Id. at 662, 113 S.Ct. 2297.
The analogy to Northeastern Florida is useful here.
8

On its face, Framework 15 is largely an extension of Framework 14. See

Fed.Reg. 9580, 9581 (Feb. 28, 2003) (noting that Framework 15's only
modification of the management measures that previously had been in effect
was an increase in certain limits on the amount of scallops that could be held on
board a fishing vessel). And as a practical matter, it appears that Framework 15
was designed merely to maintain the status quo until NMFS could complete a
more comprehensive overhaul of its management measures through an
amendment to the scallop FMP.7 NMFS states that Framework 15 is based on
entirely new data about the condition of the scallop resource, NMFS Br. at 23,
27-28; cf. Gulf of Maine, 292 F.3d at 88, but it identifies no portion of the
record to support this assertion. See Mulvihill v. Top-Flite Golf Co., 335 F.3d
15, 28 (1st Cir. 2003) (declining to consider argument where litigant "ma[de] no
attempt either to marshal the pertinent facts or to engage in reasoned analysis");
see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived."). In any event, we have studied
the record with care and cannot tell whether and to what extent Framework 15
was developed with new underlying data. Consequently, we cannot say that the
challenged conduct will not recur or has not already recurred. See Northeastern
Florida, 508 U.S. at 662, 113 S.Ct. 2297.

Whether we characterize the expiration of Framework 14 as a "voluntary

cessation" of conduct by NMFS subject to the same standards as in
Northeastern Florida, the core question Article III compels us to ask is whether
our adjudication of the issue can grant meaningful relief. Cf. Gulf of Maine, 292
F.3d at 88. Here, it appears that the same allegedly harmful scheme continues.
No matter how the issue is framed, we have no difficulty concluding that,
where a challenged regulation continues to the extent that it is only superficially
altered by a subsequent regulation, we are capable of meaningful review. See
Schall v. Martin, 467 U.S. 253, 257 n. 2, 104 S.Ct. 2403, 81 L.Ed.2d 207
(1984) (concluding that changes in general statutory scheme did not moot
challenge where contested provision remained the same); Brockington v.

Rhodes, 396 U.S. 41, 43, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969) (per curiam)
(finding that suit attacking requirement that nominating petitions be signed by
seven percent of voters on ground that no more than one percent could be
required was not mooted by new statute reducing signature requirement to four
percent); Keyishian v. Board of Regents of the University of the State of New
York, 385 U.S. 589, 596, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (noting that
abandonment of requirement that employees disclaim membership in
Communist party did not render challenge to constitutionality of procedure
moot where underlying statutes and regulations remained). The plaintiffs'
challenge to the substance of Framework 14 is not moot.
10

As to their procedural challenge to Framework 14, CLF and Oceana begin their
response to NMFS's mootness arguments by acknowledging that Framework 15
was promulgated in a procedurally proper manner. Yet, the plaintiffs argue,
their challenge remains live because NMFS's conduct is "capable of repetition,
yet evading review." See Gulf of Maine, 292 F.3d at 88-89 (quoting Weinstein
v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). The
defendants again point to Gulf of Maine, in which we rejected the application of
this exception and found the issue moot. See id. at 89.

11

Although the parties present compelling arguments on both sides of the debate,
we find that a more straightforward resolution of the issue is readily available
on the facts of this case. NMFS has not shown, as it must, that the alleged
procedural deficiency will not recur. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)
(requiring, in cases involving voluntary cessation of challenged conduct, that
party claiming mootness satisfy heavy burden of demonstrating that allegedly
wrongful behavior could not reasonably be expected to recur). To the contrary,
NMFS maintains that the Magnuson-Stevens Act does not require notice and
comment for framework adjustments. Likewise, NMFS argues that its routine
waivers of notice and comment under the APA have been wholly proper.8 The
fact that NMFS voluntarily provided a public notice period in promulgating
Framework 15 therefore does not suggest a change of heart as to whether the
process was legally required. Rather, as NMFS's counsel acknowledged at oral
argument, the public notice period preceding the enactment of Framework 15
was provided "out of an abundance of caution" in light of this appeal. Under
these circumstances, NMFS's voluntary cessation of the challenged conduct
does not render the challenge moot. See Adams v. Bowater, Inc., 313 F.3d 611,
613-15 (1st Cir.2002) (issue not moot where a recurrence of the challenged
conduct is highly likely).
B. Merits

12

Concluding as we do that the issues before the district court continue to present
a live controversy on appeal, we turn to the merits of the case. The district
court's entry of summary judgment is subject to de novo review. See Associated
Fisheries, 127 F.3d at 109. In the administrative law context, however, this
review is limited, even at the summary judgment stage. See id. This is because
the Magnuson-Stevens Act adopts the APA standard of review, which permits
a court to upset an agency action only if it is arbitrary, capricious, or otherwise
contrary to law. See id. (citing 5 U.S.C. 706(2)(A)-(D)). Therefore, our task is
to determine whether the action "was consonant with [the agency's] statutory
powers, reasoned, and supported by substantial evidence in the record." Id.
1. Substantive challenge

13

CLF and Oceana contend that Framework 14 is arbitrary and capricious in

failing to mandate the closure of scallop-harvesting in four areas. To succeed
on this claim, they must demonstrate that NMFS lacked a rational basis for
adopting the framework. See Associated Fisheries of Maine, Inc. v. Daley, 127
F.3d 104, 109 (1st Cir.1997). That showing may be made where "the agency
relied on improper factors, failed to consider pertinent aspects of the problem,
offered a rationale contradicting the evidence before it, or reached a conclusion
so implausible that it cannot be attributed to a difference of opinion or the
application of agency expertise." Id.

14

Under the Magnuson-Stevens Act, NMFS has a duty to minimize to the extent
practicable (1) adverse effects on essential fish habitat ("EFH"),9 16 U.S.C.
1853(a)(7); and (2) bycatch (fish that are caught but not sold or kept for
personal use) and bycatch mortality, 16 U.S.C. 1851(a)(9), 1853(a)(11). The
plaintiffs argue that NMFS violated these statutory obligations in rejecting the
closure of the four fishing areas. As they see it, NMFS's decision was
irreconcilable with record evidence that the closures would be beneficial with
respect to EFH and bycatch. The plaintiffs also fault NMFS's analysis, claiming
that the agency ignored relevant factors they should have considered and failed
to articulate a rational basis for declining to implement the closures.

15

These arguments are flawed to the extent that they consider the closure
alternative in isolation, discounting numerous other restrictions on scallop
fishing imposed by Framework 14. See CLF, 229 F.Supp.2d at 34 (noting that
Framework 14 maintained closures of three large scallop fishing areas, as well
as "restrictions on days at sea, catch and mesh sizes, and seasonal access to
sensitive areas"). Moreover, the plaintiffs essentially call for an interpretation
of the statute that equates "practicability" with "possibility," requiring NMFS to
implement virtually any measure that addresses EFH and bycatch concerns so

long as it is feasible. Although the distinction between the two may sometimes
be fine, there is indeed a distinction. The closer one gets to the plaintiffs'
interpretation, the less weighing and balancing is permitted. We think by using
the term "practicable" Congress intended rather to allow for the application of
agency expertise and discretion in determining how best to manage fishery
resources.
16

We also note that CLF's and Oceana's characterization of the record is

somewhat faulty. NMFS in fact considered the closure alternative and other
potential management measures in a Final Supplemental Environmental Impact
Statement ("FSEIS") that analyzed the probable effects of Framework 14. The
FSEIS concluded, inter alia, that the closures would provide only limited,
short-term benefits to habitat. These benefits would be "mitigated to some
degree" because other (non-scallop) fishing would continue in the closed areas.
The FSEIS also found that (1) implementing no new closures would have a
greater economic benefit for the fishing seasons Framework 14 was intended to
address than would the closure alternative, and (2) any long-term benefits that
might accrue as a result of closures were uncertain and might not outweigh the
benefits of forgoing new closures. It is not our role to second guess these
determinations. See Associated Fisheries, 127 F.3d at 109 ("Even if a reviewing
court disagrees with the agency's conclusions, it cannot substitute its judgment
for that of the agency."). On this record, the plaintiffs have not shown that
NMFS acted irrationally in implementing Framework 14 without imposing
additional closures.
2. Procedural challenge

a. The Magnuson-Stevens Act

17
18

The plaintiffs argue that NMFS's failure to provide a public comment period in
developing Framework 14 violated the Magnuson-Stevens Act, 16 U.S.C.
1854(b)(1)(A). Section 1854(b) requires notice and comment for regulations
prepared under 16 U.S.C. 1853(c), namely regulations that are deemed
necessary to "implementing a fishery management plan or fishery management
plan amendment," or to modifying such regulations. See 16 U.S.C. 1853(c).
The district court distinguished 1853(c) "regulations" from framework
adjustments, looking to neighboring 1855(f) for interpretive guidance. See
CLF, 229 F.Supp.2d at 33. There, Congress drew a distinction between
"regulations promulgated by the Secretary" and "actions that are taken by the
Secretary under regulations which implement a fishery management plan." See
16 U.S.C. 1855(f)(2).

19

Recognizing that a framework adjustment such as Framework 14 was

implemented through an action of the Secretary of Commerce (by his designee)
after a finding by the Council that a formal regulation was "neither necessary
[n]or appropriate," the district court concluded that framework adjustments are
properly characterized as "actions," not regulations. CLF, 229 F.Supp.2d at 33.
The court found, therefore, that framework adjustments are not subject to the
public comment requirements of 1854(b). See id. at 33-34. The plaintiffs have
not presented us with any basis for doubting the correctness of the court's
analysis, so we affirm its ruling on the basis of its sound reasoning.10

b. The APA
20
21

In the alternative, the plaintiffs allege procedural harm under the APA because
NMFS failed to demonstrate "good cause" for waiving notice and comment.
See 5 U.S.C. 553(b)(3)(B). They characterize Framework 14's statement of
the grounds for waiver as mere "boilerplate."11 See n. 8, above; Natural Res.
Def. Council, Inc. v. Evans, 316 F.3d 904, 912 (9th Cir.2003). Even if we were
to agree with the plaintiffs on this point, however, any error on NMFS's part
was harmless. See Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th
Cir. 1992) ("The APA requires that we take `due account' of the harmless error
rule."); see also Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st Cir.2001)
("The doctrine of harmless error is as much a part of judicial review of
administrative action as of appellate review of trial court judgments"). We
reach such a conclusion because, based on this record, the omission of a formal
public comment period "clearly had no bearing on the procedure used or the
substance of [the] decision reached." Riverbend Farms, 958 F.2d at 1487
(quoting Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 764-65 (9th
Cir.1986)); see also Little Bay Lobster Co., Inc. v. Evans, 352 F.3d 462, 468
(1st Cir.2003).

22

Here, the development of Framework 14 generated fourteen public meetings.

See 66 Fed.Reg. 24,052, 24,054 (May 11, 2001). NMFS followed its
procedures for framework adjustments as set forth at 50 C.F.R. 648.55, a
process with which the plaintiffs were familiar. See Riverbend Farms, 958 F.2d
at 1487-88 (finding technical noncompliance with notice requirements under
Federal Land Policy Management Act constituted harmless error where "all
parties before [the court] knew the ground rules" of the agency's weekly
procedures). The preparation of a supplemental environmental impact statement
afforded additional opportunities for public participation usually unavailable
during the framework adjustment process.12 The plaintiffs took advantage of
these opportunities, submitting written and oral comments prior to and during
Council meetings.13 The plaintiffs contend that their comments were ignored,

and that, had formal notice and comment occurred, NMFS might have decided
to explore their suggested alternatives further.14 CLF/Oceana Br. at 44 ("Had
NMFS taken public comment, NMFS might have overruled the council and
adopted more protective measures."). The administrative record does not bear
this out, however. For example, two March 2001 decision memoranda from
NMFS's Regional Administrator to NOAA's Acting Assistant Administrator for
Fisheries analyze the concerns raised by the plaintiffs. These analyses occurred
before Framework 14 was finalized. The plaintiffs disregard the significance of
this agency-level consideration of their concerns, choosing to emphasize the
ways that the Council may have slighted them procedurally.15 Further, the
plaintiffs fail to identify any comment that they were prevented from making
because of this alleged procedural defect that would have made a difference in
the result. See Little Bay Lobster, 352 F.3d at 468. The plaintiffs have
demonstrated that some of their suggestions were rejected, but not that they
were ignored. In this context, the difference is important. We find no prejudice.
III. Conclusion
23

For the foregoing reasons the judgment of the district court is AFFIRMED.

Notes:
1

The plaintiffs also sued Donald Evans, in his official capacity as Secretary of
the United States Department of Commerce, and the National Oceanic and
Atmospheric Administration ("NOAA"). The Secretary of Commerce is the
chief officer charged with managing the marine fisheries of the United States.
NOAA is an agency within the Department of Commerce, and NMFS is a part
of NOAA. Except where otherwise indicated, the federal defendants are
referred to collectively as "NMFS."

In 1976, in effort to prevent overfishing, the Magnuson-Stevens Act created

eight regional councils charged with developing fishery management plans to
regulate commercial fishing of local fish stocksSee Associated Fisheries of
Maine v. Daley, 127 F.3d 104, 106 (1st Cir.1997) (citing 16 U.S.C. 1852).
The New England Fishery Management Council (the "Council") manages the
Atlantic sea scallop fishery, which extends from Maine to North Carolina. The
Atlantic Sea Scallop Fishery Management Plan was created in 1982, and since
has been amended several times. In 1993, Amendment 4 to the scallop FMP
established a procedure whereby management measures could be altered
through so-called "framework adjustments" to respond to the changing needs of
the fishery. This procedure allowed the Council to develop, over the course of

two public Council meetings, a framework adjustment that is submitted to the

Regional Administrator of NMFS for review. Upon approval of the Regional
Administrator, the framework adjustment becomes a final rule. See 50 C.F.R.
648.55 (setting forth framework adjustment procedures).
3

The plaintiffs also alleged violations of the National Environmental Policy Act
of 1969 ("NEPA"), 42 U.S.C. 4321-4347. The district court rejected these
claims, and the plaintiffs have not pursued them on appeal

Section 1855(f)(4) provides: "Upon a motion by the person who files a petition
under this subsection, the appropriate court shall assign the matter for hearing
at the earliest possible date and shall expedite the matter in every possible
way."

Appellant Fisheries Survival Fund ("FSF") intervened as a defendant in the

underlying action on September 10, 2001. FSF is an organization of Atlantic
sea scallop fishermen

Framework 15 expires on March 1, 2004See 68 Fed.Reg. 9580, 9581 (Feb. 28,

2003).

Framework 15's scope was described in the Federal Register:

Framework 15 was developed during the later stages of development of
Amendment 10 to the FMP ... because it was clear that Amendment 10 would
not be implemented by the start of the 2003 fishing year and, therefore,
Framework 15 is considered to be an action of limited scope, which is intended
to be a stop-gap measure until Amendment 10 is implemented.

68

Fed.Reg. 9580, 9581 (Feb. 28, 2003)

NMFS has waived notice and comment for "good cause" in promulgating all
but two of the first fourteen framework adjustmentsSee 66 Fed.Reg. 24,052,
24,055 (May 11, 2001) (Framework 14); 65 Fed.Reg. 37,903, 37,909-10 (June
19, 2000) (Framework 13); 65 Fed.Reg. 11,478, 11,479 (Mar. 3, 2000)
(Framework 12); 64 Fed.Reg. 31,144, 31,148 (June 10, 1999) (Framework 11);
63 Fed.Reg. 45,939, 45,940 (Aug. 28, 1998) (Framework 10); 62 Fed.Reg.
43,469, 43,470 (Aug. 14, 1997) (Framework 9); 61 Fed.Reg. 38,404, 38,405
(July 24, 1996) (Framework 8); 61 Fed.Reg. 8490, 8491-92 (Mar. 5, 1996)
(Framework 7); 60 Fed.Reg. 35,513, 35,514 (July 10, 1995) (Framework 6); 60
Fed.Reg. 33,757, 33,758 (June 29, 1995) (Framework 5); 59 Fed.Reg. 59,967,
59,968 (Nov. 21, 1994) (Framework 2); 59 Fed.Reg. 36,720, 36,722 (July 19,
1994) (Framework 1). The framework adjustment procedure, as set forth in

Amendment 4 to the scallop FMP, contemplates that the Secretary of

Commerce will "waive for good cause the requirement for a proposed rule and
opportunity for public comment in the Federal Register" because "the Council
process will adequately satisfy that requirement."
9

EFH refers to "those waters and substrate necessary to fish for spawning,
breeding, feeding or growth to maturity." 16 U.S.C. 1802(10)

10

Because we find that the statute distinguishes between regulations and actions,
and the framework adjustment process easily fits into the latter category, we
look no further. We are not persuaded that, as the plaintiffs contend, the
legislative history of 1853(c) suggests an intent that framework adjustments
undergo public commentSee CLF/Oceana Br. at 38-39 (citing S.Rep. No. 194276, at 18-19 (1996), reprinted in 1996 U.S.C.C.A.N. 4073, 4091).

11

Framework 14's waiver of notice and comment stated:

[B]ecause public meetings held by the Council to discuss the management
measures implemented by this final rule provided adequate prior notice and
opportunity for public comment, further notice and opportunity to comment on
this final rule is unnecessary. Therefore, the [Assistant Administrator for
Fisheries], under 5 U.S.C. 553(b)[3](B) finds good cause exists to waive prior
notice and additional opportunity for public comment.

66

Fed.Reg. 24,052, 24,055 (May 11, 2001). Waivers in eleven prior frameworks
used similar, though not identical, languageSee n. 8, above.

12

See Notice of Availability of Draft EIS for Framework 14, 65 Fed.Reg. 77,025,
77,026 (Dec. 8, 2000) (accepting comments until Jan. 24, 2001); Notice of
Intent to prepare a Supplemental Environmental Impact Statement; request for
comments, 65 Fed.Reg. 60,396, 60397 (Oct. 11, 2000) (accepting comments
until November 13, 2000).

13

See J.A. at 178-186 (Nov. 13, 2000 letter from Oceana representative); 189-192
(participation of CLF and Oceana representatives at November 14, 2000
Council meeting); 217-222 (Jan. 22, 2001 letter from Oceana representative);
443-49 (Jan. 23, 2001 letter from CLF and Oceana representatives); 268
(participation of Oceana representative at Jan. 25, 2001 Council meeting).

14

The plaintiffs also rely heavily onNatural Resources Defense Council, Inc., 316
F.3d at 912, in which the Ninth Circuit found that NMFS made an insufficient
showing of good cause to waive the APA public comment period. In that case,
however, neither party briefed the issue of harmless error. See id. at 912 n. 10.

The court interpreted this silence as an admission by NMFS that some prejudice
resulted. See id. NMFS has not made a comparable admission here.
15

The plaintiffs alleged that, because public comment periods closed the day
before Council meetings, the Council was not giving due consideration to their
concerns